Tag: Civil Rights Act

Congressional Democrats reintroduced a sweeping nondiscrimination bill last week to bolster protections for LGBTQ Americans. If passed into law, the bill would clarify existing protections and fill the gaps in federal nondiscrimination laws.

The bill would amend the Civil Rights Act of 1964 to ban discrimination on the basis of gender identity and sexual orientation in housing, employment, education, federal programs, jury service, public accommodations, and credit and lending. It would also update the law to include protections against discrimination in public spaces and services like retail stores, transportation services, banks, and legal services.

According to the Movement Advancement Project, only 21 states and the District of Columbia have passed laws explicitly prohibiting discrimination and gender identity in employment and housing. Twenty states and D.C. explicitly prohibit discrimination in public accommodations. Only 14 states have non-discrimination laws covering credit discrimination.

A 2017 nationally representative survey conducted by the Center for American Progress found that among those who experienced sexual orientation or gender identity-based discrimination in the last year, 43.7 percent said it negatively affected their physical well-being. Nearly 40 percent said it negatively impacted their school environment and 52.8 percent reported that it negatively impacted their work environment. (ThinkProgress is an editorially independent news site housed at the Center for American Progress.)

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LGBTQ people have successfully argued that they’re covered by the Civil Rights Act of 1964 in the past. The term “sex-based stereotypes,” for example, has been used in cases to defend the rights of both queer couples and trans people. In 2017, a federal appeals court ruled for the first time that the Civil Rights Act protects LGBTQ workers from employment discrimination. Judge Richard Posner wrote at the time, “I don’t see why firing a lesbian because she is in the subset of women who are lesbian should be thought any less a form of sex discrimination than firing a woman because she’s a woman.”

Still, the legal landscape’s protections right now are unclear and uneven. The Equality Act would bolster protections for LGBTQ people, and would help prevent stories like the following from happening again.

EmploymentIn 2013, a transgender woman named Aimee Stephens told her funeral home employer that she was going to dress differently to better reflect her gender. Her employer responded by firing her and offering her a severance package, which she did not accept. She worked there for six years, and co-workers testified that she was a “very good embalmer” and that people were happy with her work.

Stephens filed a complaint with the Equal Employment Opportunity Commission. Then, the EEOC sued the funeral home. In 2018, the 6th Circuit Court of Appeals ruled in her favor and said, it is impossible to fire a worker based on their status as a trans person without an employer participating in sex-based discrimination.

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“Discrimination ‘because of sex’ inherently includes discrimination against employees because of a change in their sex,” the court said.

The lawyers representing the funeral home have asked the U.S. Supreme Court to consider the case.

Meanwhile, the Department of Justice recently disagreed with the idea that queer workers are covered by the civil rights law. In 2017, the department filed a brief in the case Zarda v. Altitude Express, arguing that the federal law’s prohibition of sex discrimination does not include the prohibition of discrimination on the basis of sexual orientation.

Zarda v. Altitude Express centers on Donald Zarda, a New York skydiver who is now deceased. In 2010, Zarda said he was fired because of his sexual orientation. Given his physical proximity to students during the skydive, Zarda said he thought it would make female clients more comfortable to know about his sexual orientation before the skydive. One female client told her boyfriend of Zarda’s sexuality and the boyfriend decided to complain to Altitude Express. Then, the company fired him.

The Second Circuit did not accept the argument that Title VII of the Civil Rights Act prohibits discrimination on sexual orientation. The LGBTQ civil rights organization Lambda Legal requested that the ruling be reconsidered, but the Justice Department argued against including sexual orientation under the civil rights law. It also referred to the Equality Act of 1974 sponsored by Rep. Bella Abzug (D-NY), which would have prohibited discrimination on the account of sex, marital status, or sexual orientation in public accommodations, federally assisted programs, housing, and financing. The bill died in committee.

“Congress neither added sexual orientation as a protected trait nor defined discrimination on the basis of sex to include sexual orientation discrimination,” the Justice Department wrote in its brief. “… In fact, every Congress from 1974 to the present has declined to enact proposed legislation that would prohibit discrimination in employment based on sexual orientation.”

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Clarification from Congress would certainly help strengthen protections for LGBTQ people and make it more difficult to argue that it’s unclear whether LGBTQ people have these rights.

HousingA married couple in Denver — Rachel Smith, a trans woman, and Tonya Smith, a cis woman — were looking for a new home with their two children in 2015.

When the couple found the right home, a rental townhouse, Tonya Smith emailed the landlord and described her family, including the fact that Rachel Smith is transgender. The couple visited the townhouse and met a couple that lived nearby. But the Smiths said that after they returned, they received an email from the landlord telling them they were not welcome to rent the townhouse because the neighbors were concerned. The landlord claimed their family would be the talk of the town, making it difficult for their neighbors to “keep a low profile.”

In 2017, U.S. District Judge Raymond P. Moore ruled that they were protected by the Federal Fair Housing Act, which prohibits discrimination based on sex, and wrote, “Such stereotypical norms are no different from other stereotypes associated with women, such as the way she should dress or act (e.g., that a woman should not be overly aggressive, or should not act macho), and are products of sex stereotyping.”

But other housing discrimination cases involving LGBTQ people have not succeeded. In January, a federal judge dismissed a lawsuit from a married lesbian couple in Missouri, Mary Walsh and Beverly Nance, who said they were denied housing by a senior living community called Friendship Village. According to their lawsuit, they were denied occupancy in 2016 because Friendship Village has a policy that defines marriage as “the union of one man and one woman, as marriage is understood in the Bible.”

The couple claimed Friendship Village’s actions violated the Fair Housing Act and Missouri Human Rights Act. But U.S. District Judge Jean C. Hamilton said the Fair Housing Act did not protect against discrimination on the basis of sexual orientation.

Given the courts’ disagreements on whether queer couples are covered by the Fair Housing Act, it would make a difference for Congress to weigh in through the Equality Act.

Public accommodationsTitle II of the Civil Rights Act of 1964 — the part of the law focusing on public accommodations, such as hotels, restaurants, theaters, and sports stadiums — doesn’t cover protections against sex discrimination, but only includes race, color, religion, and national origin. That means there is no legal remedy for discrimination on the basis of sexual orientation and gender identity in public accommodations under current federal law.

In 2013, Ally Robledo, a trans woman, was denied access to an Idaho grocery store, and workers called the police on her when she used the restroom. Lewiston Police Captain Roger Lanier referred to Robledo as a “a male subject who was using the female restroom” and said customers were uncomfortable. She was given a no trespass order after leaving the grocery store.

Robledo said at the time that she doubted it would have been more socially acceptable for her to use the men’s restroom and that when she has used the men’s restroom, “I found myself in a lot of dangerous situations.”

The Equality Act would protect Robledo, and others like her. The legislation would be the first national nondiscrimination bill of its kind for LGBTQ people.

The Equality Act has been introduced before — first in 2015 — but has not been able to get through the Republican-controlled Congress. Last fall, Rep. Nancy Pelosi (D-CA), who is now House speaker, said that if Democrats won the majority they would make the Equality Act a top priority. If the bill does pass the House, it’s unclear if Senate Majority Leader Mitch McConnell (R-KY) would even bring it up for a vote. His press secretary would not give NBC News a yes or no answer.

According to a 2018 PRRI survey, 71 percent of Americans said they favor laws protecting LGBTQ people against discrimination in public accommodations, housing, and employment. But 64 percent of Republicans said business owners should be able to refuse service to gay and lesbian people compared to 24 percent of Democrats and 42 percent of independents.

This article was originally published at ThinkProgress on March 18, 2019. Reprinted with permission.

About the Author: Casey Quinlan is a policy reporter at ThinkProgress covering gender and sexuality. Their work has also been published in The Establishment, Bustle, Glamour, The Guardian, and In These Times.

Just when we are rightly celebrating the fiftieth anniversary of the March on Washington and the passage of the Civil Rights Act of 1964 — what historians call the “signature achievement” of the Kennedy-Johnson administrations — that law has been gutted. Federal judges from trial courts to the Supreme Court have interpreted the Civil Rights Act virtually, although not entirely, out of existence. This is so across judicial philosophies, across the political spectrum and even across presidential appointments.

Consider the case of the Todds, African Americans who sued the Whortons, the white owners of the club where they worked for creating a racially hostile environment. The defendants moved for summary judgment — a dismissal without a jury trial. Obliged by law to consider the facts in the light most favorable to the plaintiffs, the judge found the following: Mr. Whorton directed the N-word at the plaintiffs on multiple occasions. He called a staff meeting about his use of the N-word, explaining he was too old to change the way he spoke and inviting anyone who did not like it to quit. He made other comments such as:

What do your people want? When this was a white club, my customers used ashtrays. Ever since the n—–s have been in the club, the cigarettes have been put out on the floor. The difference between blacks and n—–s is that n—–s put their cigarettes out on the floor.

He complained to Mr. Todd that he could not trust African Americans, saying, “Look at me! I know you don’t like this–n—–s don’t appreciate s–t.”

But to a federal court in Georgia, this wasn’t enough. No reasonable jury, the court held, could find a hostile work environment. Case dismissed. And in language that the marchers on the Mall fifty years ago would have found shocking, the court added, “The facts simply show that the Whortons are racist, bigoted, and/or offensive people,” but not that they created a workplace hostile to their African American employees. “In fact, none of these incidents went beyond the ‘ordinary tribulations of the workplace.'”

Racist comments in the workplace had been “ordinary” and “commonplace” when the Civil Rights Act was enacted. That’s why the law was passed. Perhaps social norms have changed in the decades since 1964; perhaps language once wholly unacceptable has become regular currency. But that is why the Act requires a representative jury to hear these claims, not a judge whose last employment in the private sector may have been decades ago and who — in looking at the federal bench’s composition — was likely to be white, male and either a former partner in a big firm or a former prosecutor.

It is not just racist speech that is acceptable; so is sexist speech. Courts trivialize sexist comments as “stray remarks” and dismiss the cases. Comments from one defendant, who said, “F—–g women. I hate having f—–g women in this office,” were held not to be direct evidence of discriminatory intent. Another defendant supervisor repeatedly referred to a plaintiff as, among other things, a “dumb shit,” “whore,” “stupid bitch” and “hooker,” yet the court dismissed the case as “general vulgarity that [the law] does not regulate.”

Aberrant decisions, you might say? Not so. Amanda Farahany from the Atlanta law firm Barrett & Farahany commissioned a study of 2011 and 2012 summary judgment orders in employment discrimination cases in the Northern District of Georgia, containing Martin Luther King Jr.’s birthplace. Of the 181 cases where the plaintiff had counsel, the Court dismissed 94 percent of them at least in part, and 81 percent in full. Racial hostile work environment claims were dismissed 100 percent of the time.

The Georgia results mirror the results nationwide. 60 percent of motions for summary judgment are granted in general, but in employment discrimination cases, the court dismisses from 70 to 95 percent of the cases.

Women, minorities, people over forty and the disabled bring discrimination cases only to lose in overwhelming numbers. So little do the judges think of discrimination claims that they rarely allow them to get to a jury at all. Federal courts have legitimized practices that would have horrified the early supporters of the Act.

Perhaps the answer is that discrimination is over and we are in the dawn of the post-racial, post-sexist society. The 1964 Civil Rights Act is unnecessary. Or perhaps it’s that, as one former colleague reported, these cases are “often trivial.” The gap between men’s and women’s wages persists, as do the income disparities between men and women, blacks and whites. And the facts of the reported cases — if proved — hardly suggest the claims are trivial.

The federal courts have largely interpreted this important legislation out of existence. Racist speech or sexist comments were not supposed to be part of the “ordinary tribulations” of the workplace. Not now. Not ever.

About the Author: Judge Nancy Gertner (Ret.) is a former U.S. federal judge who built her career around standing up for women’s rights, civil liberties and justice for all. Named one of “The Most Influential Lawyers of the Past 25 Years” by Massachusetts Lawyers Weekly, Gertner was appointed to the federal bench of the U.S. District Court of Massachusetts by President Bill Clinton in 1994. She retired from the bench in 2011 and now is a professor of practice at Harvard Law School.

After months of complaining that a female co-worker had repeatedly harassed him to have sex with her, Rudolpho Lamas’s boss offered a suggestion. Maybe, the boss said, Rudolpho should try walking around the office singing, “I’m too sexy for my shirt.” Everyone at work thought the situation was hilarious: a widower turning down the explicit sexual advances of an attractive woman. But Rudolpho Lamas and his lawyers are not laughing.

When does flirting at work cross the line and become sexual harassment under Title VII of the Civil Rights Act, Lamas’s lawyers asked. And, does Title VII impose different standards on men and women in sexual harassment cases? Finally, do gender stereotypes have a place in the jurisprudence of Title VII?

Earlier this month the Ninth Circuit Court of Appeals in San Francisco answered Rudolpho’s attorneys’ questions in a case involving a man who alleged he had been sexually harassed by a female co-worker in direct violation of Title VII. (E.E.O.C. v. Prospect Airport Services (9th Cir. 9/3/2010).) The Court’s decision is interesting, not so much for its ultimate finding—that Title VII indeed provides equal protection to male and female victims of sexual harassment is well established—but for the way the Court considers socio-cultural stereotypes about gender in the context of a Title VII claim.

Before turning to the drama of E.E.O.C. v. Prospect Airport Services, a few words about the stage on which Rudolpho Lamas’s story is now playing out.

It is illegal to discriminate in the terms and conditions of employment based on the gender of a person under Title VII of the Civil Right Act. Under Title VII, sexual harassment is considered to be a form of sex discrimination.

A Title VII sex harassment claim can be based on two theories of liability: (1) economic quid pro quo; or (2) hostile environment.

In a hostile work environment Title VII case, a co-worker or a supervisor’s gender-biased conduct is so severe or pervasive that the employee’s work environment is severely impacted. “[W]hen a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor “discriminate[s]” on the basis of sex.” Meritor Savings Bank, FSB v. Vinson, 477 US 57 (1986). And, of course, that is what Title VII’s gender provisions guard against: discrimination based on sex.

This month’s Ninth Circuit case was based on the second of these two Title VII liability theories. To maintain a gender-based, hostile environment case, a worker must show that:

(1) he or she was subjected to verbal or physical conduct of a sexual nature

Lamas presented evidence that a female co-worker repeatedly asked him to go out with her and on several occasions made explicit references to her desire to have sex with him. She wrote to him, “I’ve been thinking of you a lot lately. I’ve been having crazy dreams about us in the bath tub yeah in the bath tub… Seriously, I do want you sexually and romantically!”

The Court had no trouble finding that the conduct was sexual. “She performed gestures simulating fellatio, and gave him a photograph of herself emphasizing her breasts and possibly without clothes on. Her proposition was for sex, not a cup of coffee together.”

Having established the conduct was of a sexual nature, the Court went on to consider whether Lamas might have welcomed the conduct.

Element 2: Welcomeness

The Court next considered how the welcomeness element of the three-part prima facie case must be proved in a case involving a male victim and female harasser. What evidence does a male victim of sexual harassment need to present to establish that the sexual advances of a co-worker were unwelcome? The short answer is, the same evidence a woman needs to present.

Lamas’s employer apparently argued in the lower court that men are more likely than women to welcome the sexual advances of a co-worker. Even Lamas admitted that “most men in his circumstances” would have welcomed the invitations. So, what did the Ninth Circuit think about this digression into cultural stereotypes? Not much.

The Court was quick to point out that suppositions about what most men wanted at work was itself a stereotype and, thus, was not evidence of anything. “[W]elcomeness is inherently subjective, (since the interest two individuals might have in a romantic relationship is inherently individual to them), so it does not matter to welcomeness whether other men might have welcomed Munoz’s sexual propositions.”

“Title VII is not a beauty contest, and even if Munoz looks like Marilyn Monroe, Lamas might not want to have sex with her, for all sorts of possible reasons.” Though the reference to Marilyn Monroe is a bit old school, the message is clear and contemporary. Men, like woman, have lots of reasons to reject sexual advances by co-workers, including religious beliefs, fear of sexual harassment lawsuits, fear of complications in the workplace, fear of pregnancy or, as the Court explained, fears about facing two decades of child support payments. Or, the Court explained, “[Lamas] might feel that something was mentally off about a woman that sexually aggressive toward him. Some men might feel that chivalry obligates a man to say yes, but the law does not.”

While the Court focused on the subjectivities of welcomeness, it observed that welcomeness has an objective component as well. To hold the employer liable under Title VII, the unwelcomeness must be communicated. The employer must be told about the harassment so it can evaluate and respond to the allegations. “Sometimes the past conduct of the individuals and the surrounding circumstances may suggest that conduct claimed to be unwelcome was merely part of a continuing course of conduct that had been welcomed warmly until some promotion was denied or employment was terminated. That is a credibility issue.”

Element 3: Severe or Pervasive

Title VII is not a “general civility code” either. It is not meant to protect workers against “the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.” Faragher v. Boca Raton, 524 US 775 (1998).

Title VII is designed to provide legal remedies to those employees who have been subjected to significant gender-based harassment and discrimination. In other words, it protects employees who have been subjected to sexual conduct that is severe or pervasive.

Some conduct, such as a sexual assault of a co-worker, is severe enough to provide an immediate remedy to a worker under Title VII. A sexual assault immediately creates an abusive working environment.

Less egregious conduct can provide grounds for a Title VII claim, as well, if: (1) it happens often; and (2) it is of such nature that it is offensive to both the victim and a reasonable person in the victim’s circumstances.

Having a co-worker flash a nude picture of himself (or herself) to you one time at a holiday party might be offensive. The one-time, alcohol-driven transgression of a co-worker would not provide grounds for a Title VII claim, however. But what if a co-worker (male or female) constantly displayed pornography on his (or her) computer in a cubicle shared with another worker? What if this conduct was part of an attitude that permeated the workplace with gender bias? If the cubicle mate’s objections and complaints were ignored by the employer, and the conduct continued, it might become pervasive enough to alter the conditions of the workplace in violation of Title VII.

Most Title VII claims involve a series of such increasingly troublesome events, none of which alone would support a strong Title VII lawsuit. But taken together, they often do. So, on a behavioral scale ranging from off-color jokes to things you only see on Mad Men episodes, the case law teaches that the more outrageous the conduct, the fewer times it must occur to be actionable, and vice versa. The courts treat it as a classic inverse relationship.

Putting It All Together

By looking at the all of the circumstances of the workplace in Prospect Airport Services, the Ninth Circuit found sufficient evidence of unlawful sexual harassment to send the case back to the trial court for further proceedings. The female employee’s conduct obviously was sexual. And Lamas made it clear that he wanted the conduct to stop. The conduct was pervasive and had a serious negative impact on conditions at work. Lamas’s job performance suffered. When the harasser told her co-workers about her efforts to seduce the victim, they mocked Lamas and questioned his sexuality. Lamas complained several times to his supervisors about the harassment, but nothing was done.

If Rudolpho Lamas can convince a jury that all of this is true, then he will have proved all of the elements of a Title VII sex harassment case.

Guidelines for Flirting at Work?

In its decision earlier this month, the Ninth Circuit made it clear it does not consider all romantic overtures, or even all sexual propositions, to constitute unlawful sexual harassment

People spend most of their waking hours with other people at their workplaces, so that is where many meet and begin social relationships, and someone has to make the first overture. Some people have more social finesse than others, and many might suggest coffee or a trip to an art exhibition rather than sex, but mere awkwardness is insufficient to establish the “severe or pervasive” element.

Directly propositioning a co-worker to have sex might be incredibly cheeky and against company policy (it could get a person fired), but it does not violate Title VII. “Had Munoz merely asked Lamas to go out on a date, or to see whether they might have a romantic relationship, or straightforwardly propositioned him for sex, and then quit when he clearly told her no, the EEOC would not have shown enough evidence to survive summary judgment.”

Does this mean that acting like a normal, socio-sexual human being at work is legal under federal law? Undoubtedly so; but the definition of normal remains as subject to context, credibility and the uncertainties of the civil litigation system as ever before.

Has the Ninth Circuit now established federal guidelines for flirting at work that are applicable to men and women across the country? Not really. But, what the Court has done is to restate well established principles of law: men and women have identical employment rights, as well as identical burdens of proof, in sexual harassment cases brought under the Civil Rights Act.

About the Author: Patrick R. Kitchin is the founder of Kitchin Legal APC, a San Francisco, California employment law firm. He has represented thousands of employees in both individual and class action cases involving violations of California and federal labor laws since founding his firm in 1999. According to retail experts and the media, his wage and hour class actions against Polo Ralph Lauren, Gap, Banana Republic, and Chico’s led to substantial changes in the retail industry’s labor practices in California. Patrick is a 1992 graduate of The University of Michigan Law School and is personally and professionally committed to the protection of workers’ rights everywhere. For more information about his practice you can visit his website here.

Lawry’s claimed that the policy was based on long standing tradition. The EEOC found that the policy adversely affected a class of men on the basis of sex.

The parties reached an agreement to settle the case in early November. Under the consent decree Lawry’s agreed to:

change its practice and actively promote the hiring of men into server positions

provide monetary relief including a class fund of $500,000

pay over $300,000 to initiate an advertising campaign regarding the hiring of food servers

pay $225,000 for training its employees on compliance with Title VII and related laws

take additional steps to insure compliance with Title VII and the decree

In its announcement of the settlement, Olophious E. Perry, who managed the EEOC investigation said:

The EEOC will never condone discrimination in the name of so-called tradition. Every individual deserves a fair chance to obtain a job based on their talent and qualifications, regardless of gender.

It seems to me that there are lots of restaurants out there that still have male only, or female only servers. This case makes it clear that this is one “tradition” that has seen its day.

Cheesecake Factory Settles Case Of Male On Male Sexual Harassment

The EEOC announced this week that Cheesecake Factory, Inc, a nationwide restaurant chain, will pay $345,000 to settle a sexual harassment suit involving six male employees who were subjected to repeated sexual harassment at the company’s Chandler Mall location outside of Phoenix.

The complaint charged that the restaurant knew about and tolerated repeated sexual assaults against six male employees by a group of kitchen staffers.

The evidence included abuse involving the harassers:

directly touching the victims’ genitals

making sexually charged remarks

grinding their genitals against them

forcing victims into repeated episodes of simulated rape

According to the EEOC, managers witnessed employees dragging their victims kicking and screaming into the refrigerator. Victims’ complaints were made to virtually every manager in the restaurant but the conduct never stopped. Eventually the police were called and an EEOC charge was filed.

Mary Jo O’Neill, Regional Attorney of the EEOC’s Phoenix office had this to say:

The evidence was clear, and everyone knew about it. Behind the lavish décor that the company boasts on its web site was a horribly dysfunctional workplace where male workers lived in fear.

I would like to think that this situation is unusual, but the EEOC’s Phoenix District Office’s press release points out that it’s currently prosecuting a similar case against Fleming’s Prime Steak House.

What’s with these restaurants?

Lessons To Be Learned

When most of us think about sex discrimination, we think about discrimination against women, and that’s certainly what was contemplated when the “because of sex” language was added to Title VII.

These recent EEOC cases draw attention to the fact that men can be victims of gender discrimination as well as outrageous sexual harassment. Both forms of discrimination are against the law and can lead to serious consequences for all involved.

About the Author: Ellen Simonis recognized as one of the first and foremost employment and civil rights lawyers in the United States. With more than $50* million in verdicts and settlements and over 30 years of experience, Ellen has been listed in Best Lawyers in America and in the National Law Journal as one of the nation’s leading litigators. She has been lauded for her work on landmark cases that established employment law in both state and federal court. Ellen also possesses a wealth of knowledge as a legal analyst discussing high-profile civil cases, employment discrimination and women’s issues. Ms. Simon has been quoted often in local and national news media and is a regular guest on television and radio, including appearances on Court TV. She is the author of the Employee Rights Post, a legal blog devoted to employee and civil rights.

There is no federal statute prohibiting job discrimination based on sexual orientation or gender identity.A bill is on the horizon to change that, with a very good chance of passage.The Employment Non-Discrimination Act of 2009 (HR3017/S1584), introduced in various forms since 1974, would prohibit job discrimination based on sexual orientation or gender identity.It has 179 House co-sponsors and 40 Senate co-sponsors, and many more expected to support the bill.

Despite the arguments of opponents, the bill’s text is unremarkable in many ways.Similar to Title VII of the Civil Rights Act of 1964, the current job discrimination law, it also contains language to deal with issues specific to LGBT workers.As in Title VII, it covers employers with 15 or more employees and most government offices. It prohibits discharge, refusal to hire, and other discrimination based on “sexual orientation” or “gender identity,” as well as discrimination based on association with gay people.

The terms “sexual orientation” and “gender identity” are clearly defined, despite the concerns of opponents. “Sexual orientation” is defined in the bill as “homosexuality, heterosexuality, or bisexuality.” It’s specifically used in distinction to the more ambiguous term “sexual preference.” Opponents argue it could protect pedophiles, base on the false idea that pedophilia is a “sexual preference.” Since the term “sexual preference” is not used, and the term “sexual orientation” is very clearly defined, that argument is incorrect.Unfortunately, this been used as a fear-mongering tactic.

The term “gender identity” is defined as “gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.” This refers to the social, psychological and behavior stereotypes of our sex at birth.It protects workers from discrimination or harassment based on conformity with stereotypes of gender.For example, if someone born male expresses their gender in a manner stereotypically considered feminine, whether it be in mannerisms, appearance or, on the extreme end, identification with the opposite sex as a transsexual, they are protected from dismissal or harassment because of this.In other words, gender is removed as a job performance criterion.

Some are concerned that allowing transsexuals to have jobs will cause a burden on employers by requiring them to build separate shower and dressing facilities for transsexuals.However, the Act does not require employers to permit access to shared shower or dressing facilities where nudity is unavoidable.It specifically disavows the idea that construction of additional facilities are required.

Both terms, “sexual orientation” and “gender identity” have been used in many state and local laws since 1975, and are considered by legal experts to be well-understood in the legal context at this point.

Concerns about a “gay quota,” and a flood of lawsuits are equally unfounded. The Act explicitly bans any preferential treatment or quotas.The government may not require collection of statistics on sexual orientation or gender identity. “Disparate impact” lawsuits, often seen in the Title VII context, are not permitted under ENDA.Such claims are based on the allegation that employer actions have indirectly resulted in a reduced number of LGBT employees. Only the direct harm of “disparate treatment” lawsuits would be permitted.

Religious freedom is also addressed in the bill. The Act does not apply to organizations exempt from the religious discrimination provisions of Title VII. In his testimony at the Congressional hearing on September 23, 2009, Acting EEOC Stuart Ishimura stated his belief that this would exempt such religious organizations not only from penalties for discrimination on the basis of religion, as in Title VII, but also from all penalties under ENDA for any discrimination based on sexual orientation or gender identity.

The Act does not apply to members of the Armed Forces, and does not change special rights for veterans. It explicitly states that it will not invalidate other federal, state or local laws.

A hearing was held before the Committee on Labor and Education on September 23, at which many illustrious witnesses testified to the widespread extent of serious harm the current situation has caused for gay, lesbian, bisexual and transgender (LGBT) employees.The bill is expected to be voted on in the House in the next few weeks, where it is expected to pass.It will then go to the Senate, and a vote is expected there before year-end.President Obama has vowed to sign the bill.

About the Author: Dr. Jillian T. Weissis Associate Professor of Law and Society at Ramapo College of New Jersey, and has consulted with many organizations on issues of transgender workplace diversity, including Boeing, Harvard and New York City. She may be reached at [email protected]

Despite the difficult economy, a record number of new businesses are being created this year. When you’re starting a new business from scratch, there are a few things to keep in mind that will help you create the foundation for a good workplace – and protect your organization from the costly litigation that could result from failure to comply with employment laws.

1. If you have employees, you need a payroll service. If you’re only paying yourself, then maybe you can get by with QuickBooks or another basic accounting system. But once you begin to hire employees, you will save time and money (as well as the grief of worrying about whether your employees are being paid properly) by using a payroll service. Many banks and other service providers offer this service to their small business account holders, and the fees are a reasonable, giving this path an immediate payoff.

No one wants the IRS or Department of Labor at their doorstep, and not paying payroll taxes properly is a sure way to attract an agency’s attention. Most payroll services will also help with related administrative tasks, like tracking sick and vacation leave, allowing you to focus your energy and attention on growing the business.

2. Adopt personnel policies.Then follow them. While many start entrepreneurial ventures seeking an informal and collegial environment, and desiring to move away from the bureaucratic practices of large corporations, one of the best ways to assure that your business resembles the workplace that you seek is to establish fundamental policies to guide how you operate. It’s not hard to find a model set of personnel policies and adapt them to your business. They provide a basic shared understanding between the organization and the employees about they can expect from one another, and they underline your commitment to treat employees legally and fairly. They will also force you to think about the kind of workplace culture you wish to cultivate, and what expectations you have for your team.

The time you spend now, whether with a lawyer or HR professional, or even purchasing model policies for sale over the Internet, will directly correlate to the time saved later in preventing problems and dealing with employment issues fairly and efficiently.

3. The number of employees you have should not affect your policies. Although a number of workplace laws only apply to businesses with a certain number of employees, their intent is fair treatment of employees. For example, under Title VII of the federal Civil Rights Act, certain discrimination laws apply to employers with 15 or more employees. If you’re smaller than that magic number, then you might be tempted not to worry, because the laws don’t apply to you. Resist that temptation. If you’re successful, you’re going to keep hiring more employees, right?

If you start out not complying with employment laws, who’s going to be paying attention – much less transforming your policies and procedures – when you hit that magic number? And you just might be wrong about the number. For example, the antidiscrimination laws in California apply to employers with five or more employees, except the law prohibiting sexual harassment, which kicks in with only one employee. Fair practices are good policy, regardless of the size of your organization – and they help you avoid problems later.

4. Pay people what you’ve agreed to pay them, what the law requires and on time. The first commitment that an employer makes to an employee is to pay the employee at an agreed upon rate on a regular and predictable schedule. This is the first step in developing a trusting relationship with employees, and failure to do so damages your credibility as an employer.

While a full discussion of wage and hour issues is complex (more information is available here), you don’t have to be an employment law expert to know that you need to pay your workers what you’ve agreed to pay them. Regulations around pay are a good example of laws tied to the number of employees, and it is wiser to comply with Fair Labor Standards Act rules now rather than waiting until the organization has grown to meet its requirements.

No one can guarantee that you won’t face a lawsuit at some point. The law is complicated, and people make mistakes. Often no one can predict how the law will be applied in a particular situation until it presents itself. But unhappy employees are more likely to file lawsuits, and that’s not something you want to deal with regardless of the merits.

Entrepreneurs who follow these basic principles from the beginning can help ensure fewer problems as their ventures grow and thrive, and are more likely to end up with satisfied and loyal employees who can make real contributions to the incremental and successful expansion of their business.

About the Author: Paula Brantner is Executive Director of Workplace Fairness, which hosts the Today’s Workplace blog, and has worked as an attorney in the area of employment discrimination and civil rights law for over 16 years. Workplace Fairness is a nonprofit organization that provides information, education and assistance to individual workers and their advocates nationwide and promotes public policies that advance employee rights.

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